United States District Court, N.D. Oklahoma
DELLA SHAW, SHERLYNE TURNER, BERTHA JOHNSON, and MARY RAND, Plaintiffs,
CHEROKEE MEADOWS, LP; CARLAND GROUP, LLC; REDBUD CONTRACTORS, LLC; CARLAND PROPERTIES, LLC; and BLACKLEDGE & ASSOCIATES, Defendants. CHEROKEE MEADOWS, LP and CARLAND GROUP, LLC, Third-Party Plaintiffs,
CRAFTON TULL & ASSOCIATES, INC., Third-Party Defendant.
OPINION AND ORDER
GREGORY K. FRIZZELL UNITED STATES DISTRICT JUDGE
matter comes before the court on the Motion for Partial
Summary Judgment Against Plaintiff Della Shaw [Doc. 92];
Motion for Partial Summary Judgment Against Plaintiff Mary
Rand [Doc. 97]; Motion for Partial Summary Judgment Against
Plaintiff Sherlyne Turner [Doc. 103]; and Motion for Partial
Summary Judgment Against Plaintiff Bertha Johnson [Doc. 104]
of defendants Cherokee Meadows, LP; Carland Group, LLC; and
Carland Properties, LLC (collectively, “Carland
Defendants”). Additionally, the court considers the
Motion for Partial Summary Judgment Against Plaintiff Della
Shaw [Doc. 105]; Motion for Partial Summary Judgment Against
Plaintiff Mary Rand [Doc. 106]; Motion for Partial Summary
Judgment Against Plaintiff Sherlyne Turner [Doc. 107]; and
Motion for Partial Summary Judgment Against Plaintiff Bertha
Johnson [Doc. 108] of defendant Redbud Contractors, LLC.
Background and Procedural History
case arises from alleged violations of the Fair Housing Act
(“FHA”), Americans with Disabilities Act
(“ADA”), Rehabilitation Act, and Uniform Federal
Accessibility Standards (“UFAS”) at the Cherokee
Meadows Apartments. Cherokee Meadows Apartments is a
forty-eight (48) unit multi-family, affordable housing
community (the “Community”) for persons aged
sixty-two or older developed in 2016 by Carland Group, LLC
and owned by Cherokee Meadows, LP. Plaintiffs allege Carland
Properties, LLC is the management company responsible for
operations at the Community. Plaintiffs are tenants of
Cherokee Meadows Apartments who allege that the Community
includes artificial barriers that exclude persons with
disabilities and do not comply with federal statutes. They
further allege that defendants refused to grant reasonable
on these general allegations, the Complaint asserts the
following claims against defendants: (1) failure to design
and construct the public use and common use portions of the
Community in a readily accessible and usable manner to
handicapped persons in violation of the Fair Housing Act, 42
U.S.C. § 3604(f)(3)(C); (2) discrimination based on
handicap in violation of the Fair Housing Act, 42 U.S.C.
§ 3604(f); (3) violation of section 504 of the
Rehabilitation Act, 29 U.S.C. § 794; (4) discrimination
in violation of the Americans with Disabilities Act, 42
U.S.C. § 1213');">132[1" name="FN1" id=
"FN1">1] by designing, constructing, and
maintaining housing that is not accessible to persons with
disabilities; and (5) breach of contract.
Carland Defendants filed four separate motions, seeking
partial summary judgment against each plaintiff as to Count
1, violation of § 3604(f)(3)(C) of the Fair Housing Act;
Count 2, discrimination under the Fair Housing Act in
violation of § 3604(f); and Count 3, violation of §
504 of the Rehabilitation Act. Redbud also filed a motion for
partial summary judgment against each of the four plaintiffs.
Each of Redbud9;s four motions “adopt and
incorporate by reference” the motions for partial
summary judgment filed by the Carland Defendants as to
plaintiffs9; Count 2, discrimination under the Fair
Housing Act in violation of § 3604(f), and Count 3,
violation of § 504 of the Rehabilitation Act. Unlike the
Carland Defendants, Redbud does not seek summary judgment as
to Count 1, violation of § 3604(f)(3)(C). In addition to
the issues raised by the Carland Defendants, however, Redbud
also seeks summary judgment as to Count 5, breach of
contract. Plaintiff Della Shaw responded to the Carland
Defendants9; motion and, based upon plaintiffs9;
request and pursuant to order of this court, Shaw9;s
response is deemed responsive to the motions for partial
summary judgment by the Carland Defendants against plaintiffs
Rand, Turner, and Johnson, as well as Redbud9;s motions.
[Doc. 144');">144, p. 4');">p. 4]. The motions are therefore ripe for the
considering plaintiffs9; claims, the court must address
certain evidentiary issues raised by the parties.
Plaintiffs9; Objections to the Carland Defendants9;
response, plaintiffs object to the Carland Defendants9;
reliance on the following exhibits: Exhibit 3, Tulsa
Development Authority (“TDA”) Board of
Commissioners Meeting Executive Director9;s Report, dated
May 2017; Exhibit 4, Affidavit of Terry D. Carty; Exhibit 5,
Letter from Chuck Mitchell, P.E. of Third-Party Defendant
Crafton Tull to Terry Carty, dated March 28, 2017; Exhibit 6,
Letter from Larry K. Blackledge of defendant Blackledge &
Associates to Terry Carty, dated April 28, 2017; and Exhibit
13');">13, statements by plaintiff Shaw in a Tulsa World
news article, dated May 30, 2017. Plaintiffs contend that the
cited portions of the exhibits constitute hearsay for which
no exception exists and therefore the cited portions are
inadmissible. Fed.R.Evid. 801.
the May 2017 TDA Executive Director9;s Report, the March
28 Crafton Tull letter, and the April 28 Blackledge letter
are inadmissible to prove the truth of the matters asserted.
The Carland Defendants point to no applicable hearsay
exceptions for the documents. Further, even if the documents
were admissible pursuant to a hearsay exception, the Carland
Defendants fail to properly authenticate the documents.
See Fed. R. Evid. 803(6) (requiring a certification
by the testimony of a custodian or qualified witness, a
certification that complies with Fed.R.Evid. 902(11) or (12),
or statute permitting certification); Palmer v. Shawnee
Mission Med. Ctr., Inc., 1003');">355 F.Supp.3d 1003, 1009 (D.
Kan. 2018) (requiring authentication of public records
subject to Fed.R.Evid. 803(8) hearsay
with respect to the Carty Affidavit, plaintiffs fail to
identify any specific paragraph or averment which they
contend is hearsay. To the extent that plaintiffs object to
the entirety of the affidavit as hearsay, it is
[a]t the summary judgment stage, evidence need not be
submitted “in a form that would be admissible at
trial.” Parties may, for example, submit affidavits in
support of summary judgment, despite the fact that affidavits
are often inadmissible at trial as hearsay, on the theory
that the evidence may ultimately be presented at trial in an
Argo v. Blue Cross & Blue Shield of Kan., Inc.,
1193');">452 F.3d 1193, 1199 (10th Cir. 2006) (internal citation
omitted). For example, Carty, as Manager of the Carland
Group, LLC, can properly testify from personal knowledge that
Carland Group entered into a Voluntary Compliance Agreement
with HUD to remediate the mountable curbs, and that the
mountable curbs across driveways were removed and replaced in
December 2018 with traditional sloped driveways. [Doc. 92-4,
¶¶ 19-20]. Thus, the court declines to strike the
Carty Affidavit in its entirety.
and finally, Shaw9;s statements in the Tulsa
World article are admissible as admissions of a party
opponent pursuant to Fed.R.Evid. 801(d)(2), as well as a
statement of Shaw9;s then-existing mental, emotional, or
physical condition. See Boyd v. City of Oakland, 458
F.Supp.2d 1015, 1050 (N.D. Cal. 2006); Tracinda Corp. v.
DaimlerChrysler AG, 87');">362 F.Supp.2d 487, 495-96 (D. Del.
2005). In the article, Shaw is directly quoted as stating:
“I don9;t mind living here. It9;s a nice
apartment, and it9;s easy for my family to get to, easy
for the church bus to pick me up. It9;s nice.” [Doc.
92-13');">13, p. 3]. During her deposition, Shaw testified generally
that the article reflected her responses to the
interviewer9;s questions. [Doc. 92-2, p1');">p. 102:9 to 107:4].
Thus, Shaw9;s statement, as directly quoted in the
Tulsa World article, is admissible. However, the
remainder of the article is hearsay. Welch v. City of
Albuquerque, No. CIV-11-00700-KG-SCY, 2016 WL 8809479,
at *3 (D.N.M. May 13');">13, 2016) (“Newspaper and magazine
articles and reports or other media are, generally,
Carland Defendants9; Objections to Plaintiffs9;
their reply, the Carland Defendants object to plaintiffs9;
reliance on two items of evidence: (1) Letter of Findings of
Noncompliance, dated February 27, 2018 [Doc. 140');">140-1], and (2)
Joint Statement of the Department of Housing and Urban
Development and the Department of Justice, Reasonable
Accommodations Under the Fair Housing Act (“Joint
Statement”) [Doc. 140');">140-7]. The Carland Defendants
contend the documents constitute hearsay.
the Letter of Findings of Noncompliance, dated February 27,
2018, is inadmissible hearsay. Plaintiffs fail to provide any
foundational facts to demonstrate that the report falls
within any hearsay exception, including Fed.R.Evid. 803(6) or
Fed.R.Evid. 803(8). Further, plaintiffs fail to authenticate
the document. The documents are not self-authenticating
because they contain neither a seal nor a certification.
See Fed. R. Evid. 902(1), (2), (4). Further,
plaintiffs produce no evidence directed to any of the methods
of authentication included in Fed.R.Evid. 901. Thus, the
court does not consider the Letter of Findings of
Noncompliance for the truth of the matters asserted.
the Carland Defendants9; hearsay objection to the Joint
Statement is misplaced. The Joint Statement constitutes a
statement of official government policy, rather than a
declarant9;s written statement. See Austin v. Town of
Farmington, 826 F.3d 622');">826 F.3d 622, 628 n.7 (2d Cir. 2016).
Accordingly, the appropriate question is not admissibility,
but the persuasive weight to be afforded the statement.
Id.; see also Kuhn ex rel. Kuhn v. McNary
Estates Homeowners Ass9;n, Inc., 8 F.Supp.3d 1142');">228 F.Supp.3d 1142,
1149 (D. Or. 2017).
Issues with Respect to Plaintiffs Turner, Johnson, and
their reply, the Carland Defendants note that Shaw9;s
response brief offers no substantive response on behalf of
plaintiffs Turner, Rand, or Johnson and request the court
consider the facts contained in the motions against those
plaintiffs to be undisputed and grant those motions.
well-established in the Tenth Circuit that “a
party9;s failure to file a response to a summary judgment
motion is not, by itself, a sufficient basis on which to
enter judgment against the party.” Reed v.
Bennett, 12 F.3d 1190');">312 F.3d 1190, 1195 (10th Cir. 2002). Rather,
“[t]he district court must make the additional
determination that judgment for the moving party is
‘appropriate9; under Rule 56.” Id.
“Summary judgment is appropriate only if the moving
party demonstrates that no genuine issue of material fact
exists and that it is entitled to judgment as a matter of
law.” Id. And, as previously noted, the court
approved the plaintiffs9; request to consider plaintiff
Shaw9;s response to be responsive to the motions against
plaintiffs Rand, Turner, and Johnson. See [Doc.
the court reviews the Carland Defendants9; submissions
with respect to plaintiffs Turner, Johnson, and Rand to
determine if, taking as true all material facts
asserted and properly supported in the motion for
summary judgment, the Carland Defendants are entitled to
judgment as a matter of law. Reed, 312 F.3d at 1195.
Summary Judgment Standard
to Federal Rule of Civil Procedure 56(a), “[t]he court
shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” A fact is
“material” if it “might affect the outcome
of the suit under the governing law.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute
is “genuine” “if the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.” Id. “Factual disputes that are
irrelevant or unnecessary will not be counted.”
Id. Further, the nonmoving party “must do more
than simply show that there is some metaphysical doubt as to
the material facts.” Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
considering a motion for summary judgment, “[t]he
evidence and reasonable inferences drawn from the evidence
are viewed in the light most favorable to the nonmoving
party.” Stover v. Martinez, 82 F.3d 1064');">382 F.3d 1064,
1070 (10th Cir. 2004). “A ‘judge9;s
function9; at summary judgment is not ‘to weigh the
evidence and determine the truth of the matter but to
determine whether there is a genuine issue for
trial.9;” Tolan v. Cotton, 13');">134 S.Ct. 1861');">13');">134 S.Ct. 1861,
1866 (2014) (quoting Anderson, 477 U.S. at 249).
Summary judgment is appropriate only “where ‘the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a
matter of law.9;” Stover, 382 F.3d at 1070
(quoting Fed.R.Civ.p. 5');">p. 56(c)).
Undisputed Material Facts
following material facts are undisputed for purposes of the
Carland Defendants9; motions for summary
Della Shaw is an eighty-five-year-old woman with disabilities
that require her to rely on a cane to ambulate and for
balance. [Doc. 92, p. 9, ¶ 1; Doc. 140');">140, pp. 7-14].
Plaintiff Bertha Johnson is a sixty-eight-year-old woman with
disabilities. [Doc. 104, 1');">p. 10, ¶ 1; Doc. 140');">140, pp.
7-14]. Plaintiff Sherlyne Turner is a seventy-year-old woman
with disabilities that require her to rely on a walker to
ambulate and for balance. [Doc. 103, 1');">p. 10, ¶ 1; Doc.
140');">140, pp. 7-14]. Plaintiff Mary Rand is a sixty-eight-year-old
woman with disabilities that require her to rely on a cane to
ambulate and for balance. [Doc. 97, p. 9, ¶ 1; Doc. 140');">140,
the four plaintiffs executed lease agreements with Cherokee
Meadows Apartments for units at the Community: Shaw for Unit
B1 on December 16, 2016 [Doc. 92, p. 9, ¶ 2; Doc. 140');">140,
p. 7, ¶ 1; Doc. 92-1]; Johnson for Unit B4 on January 5,
2017 [Doc. 104, 1');">p. 10, ¶ 2; Doc. 140');">140, pp. 7-14; Doc.
104-1]; Turner for Unit J4 on January 20, 2017 [Doc. 103, p.
10, ¶ 2; Doc. 140');">140, pp. 7-14; Doc. 103-1]; and Rand for
Unit M1 on January 20, 2017 [Doc. 97, p. 9, ¶ 2; Doc.
140');">140, pp. 7-14; Doc. 97-1]. Plaintiffs moved into their
respective units in Cherokee Meadows before construction was
complete. [Doc. 92, p. 9, ¶ 2; Doc. 104, 1');">p. 10, ¶
2; Doc. 103, 1');">p. 10, ¶ 2; Doc. 97, p. 9, ¶ 2; Doc.
140');">140, pp. 7-14]. Neither Shaw nor Rand requested to see
another unit before either signed her respective residential
lease. [Doc. 92, 1');">p. 12, ¶ 24; Doc. 97, p. 13');">13, ¶ 27;
Doc. 140');">140, pp. 7-14].
January 1, 2017, Cherokee Meadows, LP “and its
successors and Transferees” and the Oklahoma Housing
Finance Agency executed the Regulatory Agreement for
Low-Income Housing Tax Credits Creating Restrictive
Covenants. [Doc. 105-1]. Turner was initially denied a unit
in the Community because she would not provide the property
manager necessary paperwork related to her housing voucher,
but, since then, no one at Carland Properties or Cherokee
Meadows has refused to accept her housing voucher as part of
her rent. [Doc. 103-2, p1');">p. 110:11 to 112:1, 113');">13:9-14].
Plaintiffs have renewed their respective leases and remain
residents of the Community. [Doc. 92, p. 9, ¶ 3; Doc.
104, 1');">p. 10, ¶ 3; Doc. 103, 1');">p. 10, ¶ 3; Doc. 97, p.
9, ¶ 3; Doc. 140');">140, pp. 7-14].
completed a Move In Inspection Report, which stated
“[t]he premises are being delivered in clean, sanitary,
and good operating condition, with no spots, stains, marks or
damages, unless otherwise noted below in the “Move-In
Exceptions9; box.” [Doc. 140');">140-9]. The Inspection
Report did not note any issues regarding cabinet heights,
toilet clearances, light switch heights, or threshold
heights. [Doc. 92, p. 13');">13, ¶ 28; Doc. 140');">140, 1');">p. 11, ¶
17; Doc. 140');">140-9].
January 20, 2017, Shaw and Rand issued a handwritten letter
to “Terry D. Carty, owner and or the current project
manager for Cherokee Meadows” “requesting
reasonable accommodations, ” including that “all
driveways have proper inlets and ADA safety.” [Doc. 92,
1');">p. 11, ¶ 15; Doc. 140');">140, pp. 7-14; Doc. 92-8]. The letter
The Cherokee Meadows9; driveways, with mountable steep
curbs, while we are told passed inspection, are a safety
issue. We are endangered as there are no inlets and access is
difficult or impossible. We are afraid of falling on the
driveway curbs. None of the residents have safe access for us
to simply cross the street and visit neighbors.
[Doc. 92-8; Doc. 140');">140-2]. The letter also noted that the
Community did not have mail delivery or landlines.
[Id.]. Carty responded in a letter dated January 25,
2017. [Doc. 92, 1');">p. 11, ¶ 16; Doc. 140');">140, pp. 7-14; Doc.
92-9]. Carty suggested that tenants in need of a landline for
a heart monitor contact AT&T9;s local office for a
temporary accommodation until permanent lines were installed,
and suggested possible solutions with respect to getting mail
from the curb-situated mailboxes. Specifically, Carty
suggested that “if any tenant thinks the curbs might be
an issue we will replace their mailbox with one that opens
from both sides, ” and also that postal customers may
request special accommodations from the United States Postal
Service and have their mail delivered to their door with a
letter from their doctor. The letter states that Cherokee
Meadows “would gladly provide a mail box at the
door.” [92-9, 1');">p. 1]. AT&T installed a temporary
phone line within two weeks of Rand moving into her unit, and
Rand had no problems with the line once installed. [Doc. 97,
1');">p. 12, ¶ 21; Doc. 140');">140, pp. 7-14; Doc. 97-2, p. 34:13');">13 to
early March 2017, Johnson claims that she fell off of a curb
at Cherokee Meadows. [Doc. 104, p1');">p. 10, ¶ 4; Doc. 104-2,
pp. 9:25 to 11:17; 22:3-12]. Johnson stated that it was
“pitch black dark” at the time of her fall
because there were no lights on the property. [Doc. 104, p.
11, ¶ 5; Doc. 104-2, p. 8:18-25]. Turner also claims
that she fell at night when she was stepping down from a curb
onto the street with her walker. [Doc. 103, 1');">p. 11, ¶ 4;
Doc. 103-2, 1');">p. 14:18 to 16:16]. Neither Shaw nor Rand have
fallen because of the curbs. [Doc. 92, p. 9, ¶ 4; Doc.
97, p. 9, ¶ 4; Doc. 140');">140, pp. 7-14]. In early 2017,
Cherokee Meadows estimated the costs to change the mountable
curbs would exceed $100, 000.00. [Doc. 92, 1');">p. 10, ¶ 8;
Doc. 140');">140, pp. 7-14; Doc. 92-4, p. 4');">p. 4, ¶ 17].
spring of 2018, Carland Properties was advised by Tax Credit
Assurance that allowing tenants to pay rent late, without
imposing late fees, was having a negative financial impact
upon Cherokee Meadows monthly financial reports. Tax Credit
Assurance prepared and recommended a payment plan system that
would eventually bring tenants who consistently paid rent
late on schedule. This change in policy included the
imposition of late fees for late rent payments as well as
payment of an additional agreed fee that would eventually
allow these tenants to pay their rent on time. The payment
plan and imposition of late fees was applied universally to
all late-paying tenants at Cherokee Meadows, not just the
tenants involved in this litigation. [Doc. 97, p1');">p. 14-15,
¶¶ 41-42; Doc. 104, p. 13');">13, ¶¶ 23-24; Doc.
97-10, pp. 2-3, ¶¶ 7-11, 14]. Rand paid a late fee
for three months, but, after she complained, the Carland
Defendants ceased its application of the new policy to her
and refunded all late fees it had charged her. [Doc. 97, p.
14, ¶ 40; Doc. 140');">140, pp. 7-14; Doc. 97-10, pp. 3-4,
¶ 15; Doc. 97-2, p. 79:2-7]. Johnson refused to accept
the policy change and continued paying her rent as she had
since moving into Cherokee Meadows. [Doc. 104, p. 13');">13, ¶
25; Doc. 140');">140, pp. 7-14; Doc 104-2, pp. 39:16 to 40:3].
Cherokee Meadows never pursued late fees against Johnson.
[Doc. 104, p. 13');">13, ¶ 25; Doc. 140');">140, pp. 7-14; Doc. 104-8,
p. 4');">p. 4, ¶ 16].
October 2018, Turner alleges that Collette Anderson, the
then-property manager, “told her that her lease was up
before it really was.” [Doc. 103, 1');">p. 14, ¶ 31;
Doc. 103-2, 1');">p. 102:4-21]. However, Turner corrected Anderson,
and did not sign a renewal lease at that time. [Doc. 103, p.
14, ¶ 31; Doc. 103-2 at p1');">p. 102:22 to 103:1].
point during Johnson9;s residency at the Community, the
then-property manger Kelly informed Johnson of a $10 rent
shortage for each month of her residence there. [Doc. 104, p.
12, ¶ 19; Doc. 140');">140, pp. 7-14; Doc. 104-2, pp. 35:8 to
37:10]. Johnson requested that Kelly call Carland and the
corporate office said that it was a
“misunderstanding” and that Johnson did not owe
anything. [Id.]. Johnson never paid the alleged $10
per month shortage. [Doc. 104, p. 13');">13, ¶ 20; Doc. 140');">140,
pp. 7-14; Doc. 104-2, pp. 35:8 to 37:10].
November and December 2018, Cherokee Meadows, LP retrofitted
the mountable curbs by removing them across the driveways to
each apartment and replacing them with a sloping driveway.
[Doc. 92, 1');">p. 10, ¶ 11; Doc. 140');">140, pp. 7-14; Doc. 92-4, p.
4, ¶ 20]. As of July 1, 2019, the cost to retrofit the
curbs was $36, 500.00. [Doc. 92, 1');">p. 11, ¶ 12; Doc. 140');">140,
pp. 7-14; Doc. 92-4, p. 5');">p. 5, ¶ 21]. As of July 1, 2019,
Shaw, Rand, and Turner have mail delivered directly to their
respective doors. [Doc. 92, 1');">p. 12, ¶ 21; Doc. 97, 1');">p. 10,
¶ 6; Doc. 103, 1');">p. 14, ¶ 25; Doc. 92, pp. 7-14].
Carland Defendants Analysis
previously stated, the Carland Defendants seek partial
summary judgment separately against each plaintiff as to
Count 1, violation of § 3604(f)(3)(C) of the Fair
Housing Act; Count 2, discrimination under the Fair Housing
Act; and Count 3, violation of § 504 of the
Rehabilitation Act. The Carland Defendants raise the
following propositions in their motions for partial summary
judgment against all plaintiffs: (i) plaintiffs cannot
establish that the Carland Defendants engaged in
discriminatory conduct under the FHA; (ii) plaintiffs cannot
establish a prima facie case of failure to make a
reasonable accommodation under the FHA; (iii) plaintiffs
cannot establish retaliation under the FHA; (iv) plaintiffs
are not entitled to punitive damages under the FHA; (v)
plaintiffs are not entitled to emotional distress damages
under the FHA; (vi) plaintiffs cannot establish a prima
facie case of discrimination under the Rehabilitation
Act; and (vii) plaintiffs9; request for injunctive relief
is moot. Additionally, as to plaintiffs Johnson and Turner,
the Carland Defendants contend that those plaintiffs cannot
establish a breach of the duty by the Carland Defendants
under the FHA resulting in personal injury.
court first considers the propositions related to the Fair
Fair Housing Act
3604(f) of the Fair Housing Act (“FHA”) generally
prohibits discrimination in the sale or rental of any
dwelling because of handicap. The Tenth Circuit has
recognized that “[p]rohibited handicap discrimination
may take several forms, including (1) disparate treatment,
i.e., intentional discrimination; (2) disparate impact, i.e.,
the discriminatory effect of a facially neutral practice or
policy; (3) a refusal to permit ‘reasonable
modifications of existing premises9;; (4) a ‘refusal
to make reasonable accommodations in rules, policies,
practices, or services9;; or (5) a failure to
‘design and construct9; handicap accessible
buildings.” Keys Youth Servs., Inc. v. City of
Olathe, 8 F.3d 1267');">248 F.3d 1267, 1272-73 (10th Cir. 2001) (quoting
42 U.S.C. § 3604(f)(3)). Additionally, the FHA prohibits
“steering” and retaliation. 42 U.S.C. 3605(a),
(f)(1) and 42 U.S.C. § 3617, respectively.
Count 1, plaintiffs assert a discrimination claim for failure
to “design and construct” handicap accessible
multifamily dwellings pursuant to 42 U.S.C. §
3604(f)(3). In Count 2, plaintiffs seek recovery for
violation of § 3604(f), which prohibits discrimination
“in the terms, conditions, or privileges of . . .
rental of a dwelling, or in the provision of services or
facilities in connection with such dwelling, because of a
handicap.” 42 U.S.C. § 3604(f)(2). Count 2 also